Despite Benefits, DAPA Executive Action Comes With Risk


This week, Human Rights Watch released a new report which highlights a gaping hole in Obama’s new executive action program, “Deferred Action for Parental Accountability,” or “DAPA,” which was passed in order to provide a temporary safe harbor from deportation for many parents of U.S. citizens who can prove long-term residence in the U.S.  While the new policy will certainly be a life raft for thousands of individuals who are already present in the U.S., it does nothing for parents who were, for one reason or another, abroad when the announcement was made. Human Rights Watch reports that as many as 50,000 people apprehended and deported at the border each year are the parents of U.S. citizens attempting to rejoin family in the U.S., and these people will not be protected by DAPA.

DAPA provides no relief for individuals who are out of the country, no matter how extensive their ties are to the U.S.  In fact, the policy will actually create a far more significant barrier in the path towards reunification for these families, because it prioritizes the swift deportations of immigrants caught attempting to enter the country without permission.

Ironically, this renewed emphasis on border security may also create a serious obstacle for some individuals who are present in the U.S.  This is due to the lack of clarity of the new plan, which we have seen ICE officials use to expedite the deportation of people who were apprehended entering at the border any time in the past – not just recent entrants or people attempting to cross the border after Obama’s order was issued.

The problematic language occurs in the November 20, 2014 Memo issued by the Department of Homeland Security entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” This memo was issued in tandem with the DAPA Executive Action announcement, and serves as the “enforcement prong” of the new policy, promising to enhance border security and prioritize the deportation of individuals with serious criminal records.  However, in addition to persons with felony convictions, suspected terrorists, and individuals who have suspected gang ties, the memorandum defines “aliens apprehended at the border or ports of entry while attempting to unlawfully enter the US” as “Priority 1” enforcement targets.

Based on the Obama administration’s statements during and after the Executive Action announcement, most immigration attorneys believed that this priority category referred to individuals who were caught at the border after the executive action memos were put in place. If Obama intended this category of people to include every individual who had ever been apprehended at the border while trying to enter unlawfully, no matter when the apprehension occurred, it would mean that a significant number of individuals who may have been apprehended upon their initial entry several years ago but who have been continuously residing in the U.S. since their last arrival would become “Priority 1” targets for deportation instead of falling into the category of people the administration was trying to help with the new rule.

This isn’t just an issue of semantics. I have personally heard accounts from other immigration attorneys that ICE offices in some parts of the country have actually been using the lack of clarity in the memos as a way to prioritize the deportations of people who actually meet all other qualifications for the DAPA program.  I believe this is an egregious misreading of the new policy, and I am thankful that I have not encountered ICE officers choosing this path in my region of the country yet.

ICE’s alarming interpretation of the new rules does remind me that once the Executive Action program is implemented, we as immigration attorneys need to be absolutely clear with potential applicants that applying for this benefit does carry risks.  The program is extraordinarily tenuous and there is no telling how a subsequent administration will perpetuate or alter it. Further, right now there is a significant lack of clarity regarding the qualifications and implementation of the program.  So, though it will definitely prove to be a life-altering blessing for many families, it’s important to keep in mind that the benefits may come with a cost. Namely, by applying for the benefit, people will also be making themselves vulnerable to a government whose future intention towards the undocumented immigrant population in the U.S. is far from clear.